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A HARD LOOK AT SOME PAINFUL NUMBERS

[Posted May 31, 2013] Oh, rats.

Today, I finally got a look at part of the 2012 State of the Judiciary Report. For those who, like me, actually enjoy poring over statistics to see what trends can be divined from them, this report is quite the goodie bag. It contains figures that are (or at least should be) of interest to every appellate practitioner, and plenty of trial lawyers, too. This report spells out how many petitions arrive at the justices’ door each year, and what the court does with them, at least in the aggregate.

In the past couple of years, I’ve focused on the writ-granted rate in civil cases, to see how appellants fared when seeking a writ. (In criminal cases, the news has always been bad, but now the probability of getting a writ is approaching lottery-ticket odds, as noted below.) Over that time, I’ve simply divided the number of writs granted by the numbers of writs acted upon (grants, plus refusals and procedural dismissals) to get an overall success rate. Stretching back over a couple of decades, that figure has danced around somewhat from year to year, but the long-term average is 21%.

And yet, I’ve concluded relatively recently that I should also calculate the odds of getting a writ assuming you don’t sustain a procedural dismissal. After all, an appellate lawyer should be able to eliminate the chance of a dismissal because of simple but fatal flaws like omitting assignments of error. Factoring procedural dismissals out of the equation gives a truer picture of how often the court grants a writ when it considers the “merits” of the petition.

That’s a fairly easy calculation – or at least it was, until this year. This year’s report no longer delineates between procedural dismissals and refusals; it simply lumps them into a single figure, with the agonizing notation, “Counts for Procedural Dismissal are not shown.” Rats! So much for my attempt to be more exact.

Despite this, we’ll make the best of what we have. Here are the trends that emerge from an evaluation of the most recent stats:

Fillings were down slightly overall – 2,216 last year, as compared with 2,333 in 2011. The court’s overall incoming workload was down about 5% in comparison with 2011. But this drop continues a four-year decline in petitions filed; in 2009, there were 2,639 petitions of all types filed. That’s a drop of 16% in just four years.

Civil filings remained constant at exactly 600 petitions in each year. This is one area in which the court’s caseload has, subject to annual wobbles, remained within a relatively tight range.

Criminal petitions have been falling – there were just 1,016 criminal petitions in 2012. That’s down a whopping 23% from just two years ago.

The justices are granting fewer writs than they have in even the very recent past. Here’s the overall grant rate (which includes procedural dismissals) in civil appeals for the past six years:

2007: 21.3%

2008: 19.0%

2009: 19.0%

2010: 23.0%

Note that each of these numbers is fairly close to the norm of 21%. But behold:

2011: 15.8%

2012: 15.4%

Now let’s compare the rate in criminal appeals. If you’re a defense lawyer, you might want to sit down and maybe pour yourself a wee dram before reading these numbers:

2007: 4.1%

2008: 4.1%

2009: 4.4%

2010: 3.7%

2011: 2.6%

2012: 1.7%

In other words, the Supreme Court is refusing or dismissing 59 out of every 60 criminal petitions. The justices are essentially getting out of the criminal-appeal business, giving unexpected credence to my recent tongue-in-cheek observation that the Court of Appeals is becoming, in effect, the court of last resort in Virginia for criminal appeals.

But the drop in civil writs, if it continues, signals a reduction in that docket, too. For the nine-year period from 1993-2001, the court averaged 235 writs (of all types) a year. The next nine-year stretch, going into 2010, was down noticeably, but the court still averaged 194 writs a year. In the past two years, we’ve seen 152 and 123, respectively.

What about 2013? According to the court’s website, there have been 31 writs granted this year. Today is the last day of May, so the math is easy; at this pace, we’re headed for something like 75 grants in a calendar year, a rate that would have been unthinkable just a few years ago. The bottom is dropping out of the writ market.

How does this affect you, my loyal readers? It depends on who you are.

If you win your case in the trial court, smile. The odds of your getting reversed were always small, but these days, they’re shrinking.

If you’re a prosecutor, you’re already smiling and you don’t need any advice from me.

If you’re an appellant, know that you now have a tougher row to hoe. There’s no way to calculate the odds of getting a reversal in specific circumstances (for example, it’s easier when a trial judge takes away a jury verdict, and harder when the other side got the verdict and a judgment), so as they say in the advertisements, “Your results may vary.”

Now, once a writ is granted, the odds for the appellant brighten substantially. The long-term historic trend is that the court reverses, in whole or in part, 60% of the time after a grant. That being said, 2012 was the third year in a row in which the court affirmed more often than it reversed after argument on the merits. But fluctuations like that are common; if the trend is still around in another three years, I’ll start to suspect a change.

If you’re an appellate lawyer, then, candidly, it’s becoming a lot tougher to ply your trade, unless you’re one of those lucky souls who always represent appellees. The field of appellate practice was, until very recently, a growth sector in the practice of law. This set of statistics, and its slightly older brethren, convince me that that’s no longer the case. There will always be demand for excellence, in any field of practice, so I won’t try to dissuade my pals in the appellate bar from pressing onward. But fewer petitions and fewer writs mean less work for those of us who venture to Ninth and Franklin for our livelihood.